ON APPEALS FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA

[December 10, 2003]

Justice Stevens, dissenting with
respect to §305.*

The Chief Justice, writing for the
Court, concludes that the McConnell plaintiffs lack standing to
challenge §305 of BCRA because Senator McConnell cannot be
affected by the provision until 45 days before the
Republican primary election in 2008. Ante, at 4.
I am not persuaded that Article IIIs case-or-controversy
requirement imposes such a strict temporal limit on our
jurisdiction. By asserting that he has run attack ads in the
past, that he plans to run such ads in his next campaign, and
that §305 will adversely affect his campaign strategy,
Senator McConnell has identified a concrete,
distinct, and actual
injury, Whitmore v. Arkansas,495 U.S. 149, 155
(1990). That the injury is distant in time does not make it
illusory.

The second prong of the standing
inquirywhether the alleged injury is fairly traceable to
the defendants challenged action and not the result of a
third partys independent choices†poses a closer question. Section 305 does not
require broadcast stations to charge a candidate higher
rates for unsigned ads that mention the candidates
opponent. Rather, the provision simply permits stations to
charge their normal rates for such ads. Some stations may take
advantage of this regulatory gap and adopt pricing schemes that
discriminate between the kind of ads that Senator McConnell has
run in the past and those that strictly comply with §305.
It is also possible, however, that instead of incurring the
transaction costs of policing candidates compliance with
§305, stations will continue to charge the same rates for
attack ads as for all other campaign ads. In the absence of
any record evidence that stations will uniformly choose to
charge Senator McConnell higher rates for the attack ads he
proposes to run in 2008, it is at least arguable that his
alleged injury is not traceable to BCRA §305.

Nevertheless, I would entertain
plaintiffs challenge to §305 on the merits and
uphold the section. Like BCRA §§201, 212, and 311,
§305 serves an importantand constitutionally
sufficientinformational purpose. Moreover,
§305s disclosure requirements largely overlap those
of §311, and plaintiffs identify no reason why any
candidate already in compliance with §311 will be harmed
by the marginal additional burden of complying with §305.
Indeed, I am convinced that the important governmental
interest of shed[ding] the light of publicity on
campaign financing, invoked above in connection with
§311, ante, at 9 (opinion of Rehnquist,
C. J.), would suffice to support a legislative provision
expressly requiring all sponsors of attack ads to identify
themselves in their ads. That §305 seeks to achieve the
same purpose indirectly, by withdrawing a statutory benefit,
does not render the provision any less sound.

Finally, I do not regard §305
as a constitutionally suspect viewpoint-based
regulation. Brief for Appellants/Cross-Appellees Senator
Mitch McConnell et al. in No. 021674 et al., p.
67. Like BCRAs other disclosure requirements, §305
evenhandedly regulates speech based on its electioneering
content. Although the section reaches only ads that mention
opposing candidates, it applies equally to all such ads.
Disagreement with ones opponent obviously expresses a
viewpoint, but §305 treats that expression
exactly like the opponents response.